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Notes -
Perhaps missed in the debate noise: SCOTUS rules that for January 6 protestors to be convicted under the Sarbanes-Oxley law against impairing an official proceeding, "the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so". Just interfering by making a ruckus which caused the proceeding to halt doesn't cut it.
(Also Chevron deference was overturned, though I suspect courts will lose no time finding other reasons to defer to agency judgement)
Fischer v. United States
6-3, but an unusual lineup: Opinion by Roberts, joined by the other men and Jackson, Jackson concurrence, and Barrett dissent, joined by Sotomayor and Kagan.
This case involved charges for actions January 6th, but I don't think it's very politically momentous. It's about whether the Sarbanes-Oxley Act covers that behavior. It's a case on statutory interpretation.
The text of section 1512 is:
The question is what (c)(2) there extends to. Must it involve documents or other objects? Or just anything that affects a proceeding?
(Following Roberts, now)The parties agree that (c)(2) must cover some set of "matters not specifically contemplated" by (c)(1). So, does that involve all obstructive acts (with (c)(1) being to illustrate just one type)? Or does (c)(2) involve a narrower scope, with (c)(1)'s things in mind?
Roberts turns to two textual canons, that is, principles for legal interpretation: noscitur a sociis ("it is known by companions") and ejusdem generis ("of the same kind"). Noscitur a sociis says we should look at surrounding words to understand the more precise meaning; ejusdem generis says that a general term at the end of a list is usually defined in reference to the classes of things preceding it in that list. Two fun examples: "do not pet, feed, yell or throw objects at the animals, or otherwise disturb them" should not be taken to refer to talking to a friend near the enclosure, even if it disturbs the gorilla within. Likewise, if a football league said that players must not "grab, twist, or pull a facemask, helmet, or other equipment with the intent to injure a player, or otherwise attack, assault, or harm any player," this should not be read as including insults hurting the other player's feelings. Likewise, "otherwise" provisions should be interpreted in context, as in Begay where they ruled that driving under the influence is not a "violent felony."
In this case, then, (c)(2) should be read as limited by the preceding list. If it were read broadly, beyond (1)'s focus on impairment of evidence, the examples would hardly have been needed, and (c)(2) would "consume" (c)(1), leaving it with nothing to do. Reading it this was is the opposite of the ordinary reading of statutes, where broad language should be limited by narrower terms. This reading better recognizes the purpose: to impair the availability or integrity of them in ways other than specified in (c)(1), like creating false evidence, or impairing the availability of things that are not "record, documents or other objects."
A narrow reading, Roberts avers, also makes sense in light of history. These provisions were from the Sarbanes-Oxley Act, created after the Enron scandal. It turned out, to people's surprise, that the law did not prohibit destroying documents, but only persuading to destroy them; this act was to fix that.
Roberts reads the broader context of 1512 as limiting (c)(2). Section 1504 covers influencing jurors in writing. 1505, obstructing congressional inquiries. 1507, picketing with the intention of obstruction. 1510(a), obstruction through bribery. And so forth. But if 1512(c)(2) were read broadly, then it would make unnecessary all of that. It would also make unnecessary various things within 1512, and would also increase the prison sentence allowable in many cases.
The government argues that the difference in mens rea (guilty mind) is meaningful, as here it requires corruptly, whereas other portions do not require that. But Roberts argues that many of the other provisions are arguably corrupt, like knowingly using intimidation or threats. The other sections differ, because they often include more than just official proceedings. But it would still end up consuming several other portions. He rejects the dissent's arguments that theirs also creates some surplusage, because his interpretation creates less. They should avoid reading it as a coverall. That is usually the right way to go in obstruction cases, and there is no reason to go otherwise here. All this would give prosecutor's broad discretion for terms intended to have shorter maxima.
Jackson concurs. She emphasizes "Hewing closely to Congress's will or purpose in the statute. She finds the football analogy illustrative. She emphasizes that not only the less serious than intended things do not apply (trash talk), but also the more serious also fall outside of the intent and application (shooting another player). They would not call the referee, but the police. And so what is designed must be what is considered. (Jackson clarifies that she holds to noscitur a sociis and ejusdem generis not as principles in themselves, but as tools to help figure out what Congress was doing. They are not infallible. Other tools like context or history can also help show the intent.)
Turning to the statute, it is clearly caring about documents and objects and so forth. This fits also with the history, which involved documents at Enron. And there is no sign that this is intended to be sweeping. There is no comparable catchall from Congress for obstruction of justice, and so this is unlikely to be such a thing. It is unusual in that this would be a felony, whereas state level catchalls are nearly all misdemeanors, which befits residuals. And, this is in the midst of a long list of narrow provisions, it would be odd for Congress to stick something broad in that context. Jackson finishes by noting that she is glad the court vacated and remanded, as it is still possible it still embraces some of the events on January 6th, as documents and so forth were certainly in use for the proceeding going on then.
Barrett dissents, joined by Sotomayor and Kagan. She would read it expansively, as the provision naturally reads on its own. The words obstruct, impede, influence, official proceeding are all broad. Otherwise is often used for catchalls, and exlains how it fits with (c)(1). (c)(1) prohibits altering, destroying, mutilating, or concealing—targeting documents—and (c)(2) deals with obstructing, influencing, or impeding more generally, by different means than (c)(1). They are similar and connected in that both involve obstructing, influencing, or impeding an official proceeding. Barrett thinks that the two sections should be treated as distinct. Noscitur should not apply, because it properly speaks of a list of terms with an ambiguous word, which is not the case here. Ejusdem should not apply, as (c)(2) is not a collective following a list of items. They are "distinct and independent prohibitions." Though they share the "whoever corruptly," they contain different verbs, and (c)(1) has a separate mens rea provision. Barrett does not think we have ever applied terms to a statute like this one. She would prefer as an analogue, rather than the court's football analogy, this one:
This example clearly supports her reading, as a separate, broader, prohibition.
Barrett also rejects the Court's invocation of Begay, because it doesn't have something separated into two parts like this, but is part of one list, and wasn't even that good of a statute anyway: the final term was eventually voided for vagueness.
Barrett then addresses the argument that then there would be no reason to provide examples in (c)(1). (Barrett notes briefly that the court's interpretation also has (c)(2) subsume (c)(1).) She addresses that argument by turning to the history: Enron. Congress enacted (c)(1) to close the gap in the law, and (c)(2), then was to make sure there were no other possible loopholes. This requires that it be broad.
Barrett argues that the court doesn't clearly articulate what exactly its limited to—records, documents, or objects, or evidence more generally. The first would leave (2) not addressing very much (and so, why the broad language?), and the second it is unclear how the Court would conclude that. Congress could easily have specified records and so forth into (c)(2), but it did not. Barrett thinks the court exaggerates how much (c)(2) renders other provisions superfluous—several of what it points to involve obstruction of investigations, not proceedings (past held to be distinct), as well as some other categories. Barrett argues that it would not swallow things that might eventually end up instructing the initiation of a proceeding, because in other similar obstruction offenses, they've ruled there must be a "relationship in time, causation, or logic" with the proceeding for it to apply, and it must be in contemplation of that proceeding. That said, there would still be some overlap. But it leaves enough work for the rest, and overlap is not rare in criminal statutes. That is especially true when it was enacted subsequently, not as part of the rest of what is going on. The court's interpretation also still has some surplusage. Barrett thinks the statutory context works against the court, as 1503 prohibits influencing, obstructing and impeding the administration of justice, by threats of force.
Barrett rejects that this could be applied against innocent activists and lobbyists and so forth, as it requires that it be corrupt. She notes that, yes, it has a high maximum, but it has no minimum, which often happens when prohibited conduct varies widely in severity.
Not sure who I agree with more here. Maybe Barrett, but I'm really not sure. I'm glad it wasn't a partisan case, though.
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